In a long-anticipated ruling, the Supreme Court today upheld the
Cleveland school choice program against a federal constitutional
challenge and made it extremely unlikely that any such challenge
could prevail against similar choice programs in the future. In its
landmark opinion, the Supreme Court removed one of the unfortunate
obstacles that opponents of choice have attempted to use to stop
the growing spread and success of choice programs nationwide. The
high court ruled definitively that allowing parents to use state
scholarships for private schools, even if they include religious
schools, does not violate the Constitution.
The need for parental choice in schooling has never been
greater. In many of America's large and medium-sized cities, the
public school systems feature crumbling, violent, and academically
abysmal schools. Poor families in these areas usually have no
choice regarding their children's education because the kids are
trapped in whatever failing and sometimes violent school to which
they are assigned. The only hope for many such families is passage
of an educational choice program that gives parents other schooling
options in the short run and creates proper incentives for the
public school system to improve in the future.
Unfortunately, the dream of giving poor parents a meaningful
choice for their children is opposed by the prominent teachers
unions and their ideological brethren, who fight tenaciously to
protect the public monopoly. The teachers unions and their allies
use a variety of false and emotional arguments against granting
parents a choice, and they support endless and baseless legal
challenges to any choice proposal that is advanced. In Ohio, the
legislature overcame such obstacles and enacted an educational
reform statute that gives poor parents a variety of choices
whenever a school system has become so dysfunctional that the
courts take it over for its failure to meet the basic educational
needs of its students. Thus, the Ohio legislative choice program
became available for parents in Cleveland, whose school system has
been in judicial receivership for about seven years.
The Cleveland choice program authorized by the Ohio legislature
provided increased spending for 23 new magnet schools and for new
"community schools," which are similar to charter schools
elsewhere. It also provided a stipend for many parents to employ
tutors if they kept their children in their current schools.
Finally, it provided "choice scholarships" for some parents to help
send their children to participating private schools or suburban
public schools. When no suburban public school would accept the
inner-city children, the parents who exercised this last option
selected from a number of participating private schools, including
non-sectarian schools, nondenominational religious schools, and
religious schools of various denominations. (For more detail about
the Cleveland program, see .)
The National Education Association (NEA) and others opposed to
giving poor parents any private school choice filed suit to kill
this vital aspect of the legislative program. The NEA's principal
argument was that if any parent was permitted to use the tuition
assistance scholarship at a religious school that would amount to
an "establishment of religion" in violation of the First Amendment.
Although federal courts have increasingly rejected this desperate
legal gambit, the U.S. Sixth Circuit Court of Appeals ruled in
favor of the NEA. The Supreme Court granted review, enjoined the
Sixth Circuit's ruling, and today overruled that decision.
Today's landmark ruling lifts the cloud of litigation over the
Cleveland school choice program and should also remove the threat
of federal litigation from almost every other choice program that
permits the parents to choose the school for their children. The
Court ruled that when parents make the final choice, there is no
reason for anyone to think the state endorsed that choice and,
thus, no possible state "establishment of religion." The Court
ruled that it did not matter that government indirectly facilitated
a particular choice or indirectly aided a religious institution.
Nor did it matter what percentage of parents might ultimately
choose a religious school (even if it is 96 percent, as in the
current Cleveland program), as long as the program involved "true
parental choice" and the choice plan was enacted for a valid
secular purpose, such as improving educational opportunities for
poor children.
The victory for choice supporters will have a striking legal,
practical, and psychological impact. The likely legal effect of the
ruling will be a shift in the type of challenges that are brought,
from desperate arguments to despicable ones. Opponents of choice
will no longer be able to bring a federal constitutional challenge
to similar choice programs in good faith, although these opponents
are expected to shift their legal tactics to rely on many state
statutes and constitutional provisions that themselves are an
outgrowth of historical religious bigotry. These new challenges
should also fail, in part because the state provisions (e.g.,
Blaine Amendments) are invalid under the First Amendment.
The more dramatic and immediate effect of the victory today will
be its practical and psychological boost for the choice movement.
Already, there are 10 states that have publicly sponsored private
school choice programs, from vouchers to tax credits. With a green
light from the high court, the possibilities for new programs are
endless. While the hard work of creating new programs remains, the
door is open to legislators to extend school choice to families
seeking a better education for their children. For the over 50
percent of all poor children scoring below the grade level on our
national tests, it is imperative that legislators act on their
behalf. For the families of the 4,000 children in the Cleveland
program, the impact of today's decision is clear: They can return
to their schools this fall.
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